Rights-based approach needed in new law on legal capacity

OPINION:THE LEGAL capacity systems in Ireland and much of Europe are outdated and urgently need reform. The automatic loss of human rights of those placed under guardianship is a practice that must be changed.

As work is under way to overhaul the 1871 Lunacy Act, Ireland is in a prime position to be a progressive leader in this area and ensure its reform realises the spirit and ethos of the UN Convention on the Rights of Persons with Disabilities.

Legal capacity can be described as the capacity both to have rights and to exercise these rights.

Having legal capacity enables us to make decisions ranging from the profound (choosing where and with whom to live) to the everyday (to buy a bus ticket, to sign a lease, to consent to medical treatment). Without it we are non-persons in the eyes of the law and our decisions have no legal force. Third parties make decisions for us. This merger of our personhood into that of someone else’s has been described as “civil death”.

It affected women in the past and is still the reality for a large number of Europeans with intellectual and psychosocial disabilities (including people with mental health problems) put under guardianship regimes.

But things are changing. In addition to Ireland, legal reforms are under way in several Council of Europe member states – France, Hungary, Latvia, Portugal, Slovakia and Slovenia. Norway and Sweden are reviewing their legislation on compulsory psychiatric treatment and care. Milestone judgments have been given by the European Court of Human Rights and more cases are pending before it.

These reform trends have come about because of a growing awareness of the unsatisfactory nature of traditional guardianship law. The UN convention compels the law to assume that everybody has legal capacity and redirects our focus away from decision-making deficiencies (which are in fact universal and not confined to persons with disabilities) towards supports that enable individuals to make decisions for themselves and expand their capability to do so. The notion of “supported decision-making” simply builds on this universal reality and extends it to persons with disabilities.

The right of persons with disabilities to make choices about their lives and enjoy legal capacity on an equal basis with others is one of the most significant human rights issues in Europe today. Deprivation of legal capacity affects hundreds of thousands, if not a million, Europeans with intellectual and/or psychosocial disabilities who are put under (sometimes lifelong) guardianship.

The convention’s approach to personhood and legal capacity is inherently different from the guardianship practices in many Council of Europe member states, where persons with intellectual and/or psychosocial disabilities are given a guardian to take decisions on their behalf.

The question is no longer: does a person have the mental capacity to exercise his/her legal capacity? Instead, it is: what types of support are required for the person to exercise his or her legal capacity? This is a profound shift in the law of legal capacity.

The support called for in Article 12 of the UN Convention can take a variety of forms, but the key message is that the choices rest with the individual.

A network of supporters should be recognised – but not imposed on the individual – and these supporters may provide information and options to help him/her to make decisions. The convention says there should be appropriate and effective safeguards in order to prevent abuse.

The rights-based approach requires a respectful attitude from the community and, crucially, a capability to listen.

There may still be people whose decisions and choices we cannot understand, despite efforts by third parties to support the individual. In such cases we may have to resort to trying our best to find out what the person would have wanted.

However, this does not mean states can continue to deprive this group of their legal capacity. Instead, we need to develop different types of support, in dialogue with those directly affected, so that over time we will get better at understanding the choices and preferences of our fellow citizens.We must assume that all adults of majority age have legal capacity, without exception. No less than a radical overhaul of the law is required.

As it drafts new legislation, I urge the Government to recognise supported decision-making alternatives for those who want help in making choices or communicating them to others.

Thomas Hammarberg is commissioner for human rights in the Council of Europe